Citation Nr: 9929168
Decision Date: 10/08/99 Archive Date: 10/21/99
DOCKET NO. 95-25 668 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for the residuals of frozen
feet.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from February 1953 to November
1954.
The appeal arises from a rating decision dated in April 1995
in which the Regional Office (RO) denied service connection
for frozen feet. The Board of Veterans' Appeals (Board)
remanded this case in April 1997 and February 1999.
FINDING OF FACT
No competent medical evidence is of record that would
establish that the veteran currently has a disability due to
frozen feet in service.
CONCLUSION OF LAW
The veteran's claim for entitlement to service connection for
residuals of frozen feet is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, the Board notes that entitlement to service
connection for a particular disability requires evidence of
the existence of a current disability and evidence that the
disability resulted from a disease or injury incurred in or
aggravated during service. 38 U.S.C.A. § 1110 (West 1991).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (West 1991).
Additionally, the Board notes that the veteran must submit
evidence that a claim for entitlement to service connection
benefits is well-grounded. 38 U.S.C.A. § 5107(a). A well-
grounded claim is one which is plausible; that is meritorious
on its own and capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). Unlike civil actions,
the Department of Veterans Affairs (VA) benefit system
requires more than just an allegation. The veteran must
submit supporting evidence that is sufficient to justify a
belief by a fair and impartial individual that the claim is
plausible. Tripak v. Derwinski, 2 Vet. App. 609, 611 (1992);
Grivois v. Brown, 6 Vet. App. 136, 139 (1994).
The three elements of a well grounded claim for service
connection benefits are: (1) evidence of a current disability
as provided by a medical diagnosis; (2) evidence of
incurrence or aggravation of a disease or injury in service
as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. See Caluza v. Brown,
7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303. This means
that there must be evidence of disease or injury during
service, a current disability, and a link between the two.
Further, the evidence must be competent. That is, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause during service, a competent opinion of a
medical professional is required. See Caluza at 504.
The veteran submitted a claim for service connection for
frozen feet in August 1994. The RO has attempted to obtain
his service medical records from the National Personnel
Records Center (NPRC); however, those records are not
available and are assumed to have been lost during a fire at
that facility in 1973. The RO notified the veteran that such
records were not available and informed him of alternative
types of evidence he could submit. The Board notes that the
NPRC also reported that a search of the morning reports from
January to November 1954, for the unit to which the veteran
reported having been assigned, revealed no information
regarding the veteran.
While the veteran's DD Form 214 shows that he received the
Presidential Unit Citation, he has not asserted that he
incurred frozen feet while engaged in combat with the enemy.
Therefore, the VA is not required to accept the veteran's lay
evidence that he incurred frozen feet in service as
sufficient proof of service connection of that disorder under
the provisions of 38 U.S.C.A. § 1154(b) (West 1991).
However, the Board finds that the veteran's testimony and
contentions that he incurred frozen feet while in service are
credible for the purpose of determining whether the claim at
issue is well-grounded. The veteran contends that he
currently has residuals from frozen feet incurred during
service. The veteran also contends that his feet froze
during the winter of 1953-54 in Korea where the temperature
was frequently below zero. According to the veteran, his
feet split open in the spring of 1954, while walking over a
mountain. He maintains he received treatment for frozen feet
from a medic.
According to the report of a VA examination performed in
August 1994, the veteran's subjective complaints were of
constant pain in his feet. Examination showed that his feet
had a purplish color when in the dependent position, no
pulsation, and bilateral paresthesias. The diagnosis was
history of bilateral frostbite with bursting of the plantar
surface bilaterally and residual pain and paresthesias.
However, evidence, such as that diagnosis, which is simply
information recorded by a medical examiner, unenhanced by any
additional medical comment by that examiner, does not satisfy
the competent medical evidence requirement. Dolan v. Brown,
9 Vet. App. 358 (1996).
A December 1996 VA outpatient treatment record includes an
impression of chronic foot pain of questionable etiology. A
VA outpatient treatment record dated in April 1997 includes
an assessment of chronic pain after frostbite. However, pain
is not a disability for the purpose of establishing
entitlement to compensation benefits.
The veteran underwent another VA examination of the feet in
June 1997. That examination revealed a tinge of cyanosis on
dependency. However, there was no scarring on the plantar
surface of the feet and no secondary skin or vascular changes
or impairment of function. Additionally, the dorsalis pedis
and posterior tibial pulsations were good, bilaterally. The
diagnosis was history of frozen feet. The examiner also
commented that "[a]ccording to the remand, the etiology of
any current disability and the likelihood of any current
disability due to the frostbite experienced over forty years
ago, in service, is negligible.....his feet actually appear
normal."
In March 1999, the VA physician who performed the June 1997
examination, discussed above, examined the veteran again.
The examiner also related that he had reviewed the veteran's
claims file prior to the examination. Again, that physician
diagnosed normal feet and related that his opinion remained
unchanged since the June 1997 examination.
Thus, the veteran has submitted no competent evidence tending
to show that he currently has a disability due to frozen feet
in service and the medical evidence that does address whether
he has such a disability is against his claim. Therefore,
the Board finds that the claim for entitlement to service
connection for residuals of frozen feet is not well-grounded.
The Board also notes that the veteran testified he did not
seek medical treatment for the residuals from his frozen feet
until many years after service.
Where the veteran's service records are missing through no
fault of his own, the VA has a heightened duty to assist in
developing the facts pertinent to the veteran's claim. See
O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However,
where the veteran has not met the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that a claim for service connection
benefits is well-grounded, the VA has no duty to assist him
in developing facts pertinent to such claim. 38 U.S.C.A. §
5107. Further, if the veteran does not submit a well-
grounded claim, the appeal of the claim must fail.
38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81.
The governing law, 38 U.S.C.A. § 5107(a),
[R]eflects a policy that implausible
claims should not consume the limited
resources of the VA and force into even
greater backlog and delay those claims
which -- as well grounded -- require
adjudication. . . . Attentiveness to this
threshold issue is, by law, not only for
the Board but for the initial
adjudicators, for it is their duty to
avoid adjudicating the implausible claims
at the expense of delaying well grounded
ones.
Grivois v. Brown, 6 Vet. App. 136, 139 (1994).
Additionally, the Board notes that the veteran has not
reported that any competent evidence exists that the RO has
not already attempted to obtain and if obtained would
establish a well-grounded claim for the disability at issue
in this case. The Board notes that the veteran reported that
Dr. Gene Berry, his doctor for 30 years, told him that he had
nerve damage due to the frostbite in service. The RO
informed the veteran in March 1999 that he should submit a
statement from Dr. Berry relating such an opinion. In May
1999, the RO requested records from the facility at which the
veteran reported having been treated by a Dr. Berry.
However, that facility reported that it had no records on the
veteran. Under the circumstances, the VA has no further duty
to assist the veteran in developing a well-grounded claim for
entitlement to service connection for residuals of frozen
feet. Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v.
Brown, 8 Vet. App. 69 (1995).
Finally, the Board notes that the RO's failure to find the
claim for entitlement to service connection for residuals of
frozen feet not well-grounded constitutes harmless error.
Edenfield v. Brown, 8 Vet. App. 384 (1995).
(CONTINUED ON NEXT PAGE)
ORDER
The appeal is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals